WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Date: 2019-10-24
Court File No.: Central East Region: Oshawa Court 18-Y26011
Between:
Her Majesty the Queen
— AND —
L.D., F.L. & C.P.
Before: Justice Peter C. West
Heard on: July 31, 2019 and October 24, 2019
Oral Reasons for Sentence: October 24, 2019
Counsel
Mr. F. Stephens — counsel for the Crown
Mr. K. Mitchell-Gill — counsel for the accused L.D.
Mr. F. Davoudi — counsel for the accused F.L.
Mr. D. Barrison — counsel for the accused C.P.
Decision
WEST J.:
Conviction and Initial Proceedings
[1] On April 23, 2019, I found L.D., F.L. and C.P., all three are young persons subject to the Youth Criminal Justice Act (YCJA), guilty of the offence of assault causing bodily harm in respect of M.G. after a five-day trial. Pre-sentence reports were ordered for each of the three young persons.
[2] The Crown requested a custodial sentence of six (6) months, to be broken down by four (4) months of secure custody to be followed by a two (2) months supervision order to be followed by 12 months of probation. The Crown is also seeking firearms prohibition under s. 51(3) of the YCJA for two (2) years and a DNA order.
[3] Mr. Davoudi, on behalf of F.L., submitted I should follow Justice Hawke's decision in R. v. T.R., [2008] O.J. No. 6179, where she was initially asked to impose a deferred custody and supervision order under s. 42(2)(p), although she found ss. 42(2)(p) and 42(5) of the YCJA to be unconstitutional as a result of two breaches of s. 15 of the Charter, she ultimately imposed a 12 month period of probation with conditions. In R. v. T.R., s. 42(9) the "serious violent offence" designation was still in place. It has since been repealed in 2012. It is unclear whether Mr. Davoudi was asking me to impose a deferred custody and supervision order under s. 42(2)(p), which would require an order under s. 52 of the Constitution Act, declaring s. 42(5) of the YCJA to be unconstitutional and not saved by s. 1 or if he was submitting I should impose a sentence of probation with conditions as was imposed by Justice Hawke. There was no Charter application filed respecting the application of s. 42(5), which clearly would make a deferred custody and supervision order unavailable given the serious bodily harm occasioned to M.G. in this case.
[4] Mr. Mitchell-Gill on behalf of L.D. submitted the appropriate sentence, having regard to the fact that L.D. was a first offender, the sentencing principles enunciated in s. 38 of the YCJA and the positive PSR, a sentence of probation is appropriate. Mr. Mitchell-Gill points to fact this was a single event, which got out of hand but ended abruptly and even though one of the G.'s knocked or kicked the D. front door, no one came out to re-engage any of the G. family members. Mr. Mitchell-Gill referred to the fact there are reasonable alternative sanctions available, other than custody.
[5] In C.P.'s PSR there was a recommendation that a s. 34 report be ordered and this recommendation was also made by Mr. Barrison. It was agreed by all counsel that sentencing for each of the three young persons be adjourned to October 24, 2019.
[6] I received a s. 34 Report, which was comprised of three reports: the first was written by Heather Ratych, Assessment Clinician, dated October 21, 2019; the second was a Forensic Psychiatric Assessment by Dr. Mitesh Patel, Forensic Psychiatrist and Child and Adolescent Psychiatrist dated October 3, 2019, and the third was a Psychological Report, dated October 21, 2019, by Dr. Peter Marshall Ph.D., C.Psych., respecting C.P. Mr. Barrison advised he fully expected the s. 34 Report to recommend and approve an Intensive Support and Supervision Program (ISSP) but this was not recommended by the authors of the s. 34 Report. Consequently, it is Mr. Barrison's submission that the appropriate sentence is a probation order with conditions in line with the recommendations in the PSR and the s. 34 Report.
[7] This has been a very challenging sentencing having regard to the fact L.D. and F.L. are first offenders, who have no youth court records or even involvement with the police. C.P. has a 12 month conditional discharge for simple possession of a Schedule II substance under s. 4(5) of the CDSA. The facts of the offence I found these three young persons guilty of, after a trial, are particularly aggravating having regard to the pre-planned nature of the assault and the brutality and ferocity of the attack by five individuals on M.G., which resulted in serious injuries; namely, 19 staples to close cuts of his scalp, seven (7) stitches to his forehead, which resulted in permanent scars, painful to touch and extensive bruising to his left side, ankle to upper back, which continues to cause him chronic pain. In addition, he still gets blurry vision and headaches from the assaultive behaviour, with severe neck pain and numbness in his hands and feet. He continues to attend for treatment at the Centre for Pain Management, by way of nerve block injections and pain medications. He is unable to work because of his ongoing medical issues.
Factual Background
[8] I have set out in detail the factual background in my reasons for judgment, reported at [2019] O.J. No. 3450, at paras. 7-57; 75-93. I do not intend to set out the facts except briefly to provide context.
[9] On February 1, 2018, X.G., age 17, was texting L.D. concerning X.G.'s mother, making derogatory comments and challenging X.G. to a fight. The fight was agreed to by X.G. but while waiting for L.D. to arrive he disclosed to his other family members, his father, M.G.; his mother, N.G.; his younger sister, Z.G.; and his girlfriend, A.M. Shortly after the texts were exchanged L.D. was observed walking down the street towards the G.'s residence with 4 or 5 other youth, a number of who were wearing ski masks or scarves.
[10] M.G. went outside to attempt to calm the situation down and went over to the property of L.D. He was pushed from behind, which caused him to fall into L.D. and 4 or 5 youths then swarmed M.G. and began to punch and kick and stomp on him as he was forced to the ground. M.G. was able to get up and tried to run away. He was grabbed again on his front lawn, punched and pushed by two of the five boys and fell again to the ground. Once he was on the ground the five boys surrounded him, punching, kicking and stomping on him as he lay defenceless on the ground. There was a video, Exhibit 1, which was dark and as a result it was difficult to make out who was who during the swarming of M.G. in the two locations he was knocked to the ground. On the video during the second swarming, M.G. was curled up in a fetal position as the blows rained down upon him. Although it was difficult, if not impossible, to identify who was who on the video, J.D., L.D.'s brother, identified L.D., F.L. and C.P. as all being part of the five persons who were assaulting M.G. on the two occasions he was on the ground. J.D. did not know the names of the other two individuals but knew they were friends of his brother, L.D.
[11] I found L.D., F.L. and C.P. were guilty of assault causing bodily harm, as they were each parties to this offence. The force used towards M.G. as he lay defenceless, prone to the ground was excessive. From the video, it was clear all of the boys surrounding M.G. were engaged in punching, kicking and stomping M.G. at different points in time and were also involved in encouraging those actively assaulting M.G. when they were not. Evidence disclosed C.P. was yelling, "Stomp his head in" and at one point on the video someone can be heard yelling, "Stomp his ass." I found C.P. said either of those two things during the assaultive behaviour as it was clear from the video that when M.G. was on the ground, he was stomped a number of times by different young persons who were assaulting him.
[12] The scene was chaotic, brutal, extremely violent and utterly horrific and terrifying for those members of the G. family who observed what was taking place. I found the allegation by C.P. that N.G. had sex with him fueled the animosity and anger demonstrated by the earlier texts between X.G. and L.D. and ultimately resulted in L.D., F.L. and C.P. repeatedly assaulting M.G. while he lay defenceless on the ground curled up in a fetal position. I found the five young persons attended the G. residence spoiling for a fight and a number of them came with weapons, including an empty liquor bottle, which was observed by J.D. to be broken by a young person in a khaki jacket, not L.D. or F.L. or C.P.; a glass candle holder (Exhibit 6); rocks (Exhibit 4 was a rock thrown at X.G.) and a black handled knife (Exhibit 7). There were a number of straight linear cuts to M.G.'s head after the assaultive behaviour, which required staples to close and this knife was located in the snow in the area where M.G. had been assaulted.
[13] I found the injuries suffered by M.G. were objectively foreseeable given the nature of the assaultive behaviour (kicking and stomping on M.G.'s head and body) and the fact some of the young persons were utilizing weapons they brought to the G. residence. The five young persons were equal participants whose conduct amounted to more than mere presence. I found it made no difference if each of the three young persons before me did not deliver an equal number of blows or kicks. They were all be seen surrounding M.G. lying defenceless of the ground in the two locations he was assaulted, the five youths could be seen on the video moving in at different times to deliver a punch or kick or stomp. The presence of these five young persons prevented M.G. from escaping or being able to get up off the ground. I found there was an intention to cause bodily harm.
[14] It should be noted, on the evidence I found that after the assaultive behaviour towards M.G. ended, L.D. and C.P. assaulted X.G., which assault caused his black eye, which was reflected in the photographs filed as exhibits. This assaultive behaviour was observed by Z.G. and N.G., as well it was confirmed by J.D.; however, the police did not lay this charge and consequently, there could be no finding of guilt respecting that criminal conduct.
[15] As I indicated the factual circumstances surrounding the swarming of and assaultive behaviour towards M.G. are extremely aggravating and serious.
Victim Impact Statements
[16] Exhibits 1 to 4, on sentence, were the four victim impact statements (VIS) prepared by M.G (Exhibit 1); N.G. (Exhibit 2); Z.G. (Exhibit 3) and X.G. (Exhibit 4). It was disclosed during the evidence that M.G., X.G. and Z.G. all suffer from autism spectrum disorder, although at a high-functioning level. X.G. testified he suffers from Asperger's syndrome, which now falls within autism.
[17] The VISs all reflect the significant impact the assault of M.G. by these five young persons had on each member of the G. family. The incident has had a significant financial and emotional impact on the G. family members. N.G., who was the principal income earner for the family is currently on long term disability because of PTSD, anxiety, and panic attacks. X.G., who had been accepted into a university program but was not able to continue because of feeling anxious and feeling depressed, which led to his grades suffering. Further, money became a difficulty because he was unable to work even part-time because of these feelings. He did not return after first semester.
[18] M.G. described the emotional impact the assault has had on his relationships with others. He no longer can play music with his bandmates, something he had been involved with for years. He is constantly looking over his shoulder and becomes upset if someone is behind him. He has been diagnosed with PTSD and acute Agoraphobia and depression. He still suffers chronic pain, blurred vision, headaches, sore neck and numbness in his hands and feet from the assault. He has permanent scars on his face and head that are painful to touch.
[19] Z.G. described how she no longer can participate in sporting activities she did on school teams, as she does not feel comfortable being away from her home. School attendance has suffered as has her grades. She had dated C.P. prior to the altercation. After the assaults on her father, C.P. made a complaint to the police against her mother for sexual assault.
[20] The G. family felt they could no longer reside in their home and as a result sold it and moved to another location in Oshawa. This also caused financial strain on the family. N.G. is seeking restitution from the three young persons for the real estate fees paid to their realtor for the sale of their home, as well as, loss of income, as she is now on long term disability and the monthly therapy sessions for each of the G.'s family members, for a total of $30887.76.
[21] X.G. is seeking restitution for a torn shirt and blood on his running shoes, which he replaced.
Circumstances of L.D.
[22] L.D. is currently 19 years of age, he was 17 years of age when this offence was committed, just two and a half months from his 18th birthday. He has an older brother, J.D. His father died in 2002 as a result of an illness. L.D. was born in P.E.I. and lived there with his parents and brother until he was nine years of age when he and his brother moved to Oshawa with his mother. While in P.E.I., L.D. was in and out of foster care due to his mother's alcohol abuse issues.
[23] L.D.'s mother advised the probation officer that the conduct was out of character for L.D. and he is not an aggressive person. He has no youth court record. L.D. has two credits remaining for his high school diploma. He was registered at […] School in Oshawa but did not attend due to the charges he faced arising out of this case. According to L.D.'s O.S.R. he has always presented with learning difficulties from an early age. In 2011 L.D. participated in a psychological assessment that showed he had significant speech issues and other communication type learning difficulties. He has completed zero (0) of the community service hours for high school. His goal is to complete his two credits and attend college for a framing program.
[24] L.D. told the PSR author he did not believe he needed to be involved in any counselling but would participate if the court ordered him to. He said he did not feel badly about the fight however it was unfortunate one of the victims sustained serious injuries. It was his belief the altercation was the result of both "sides" acting out physically. If the court deemed community service hours to be appropriate he was willing to complete the hours.
[25] The probation officer recommended L.D. would benefit from participating at the McKinnon Attendance Centre to assist him in learning new techniques for controlling his feelings of anger. She also believed he would benefit from participation in the Stop Now And Plan (SNAP) program – Emotions Regulation, Self-Control and Problem-Solving Skills Program. L.D.'s mother also felt he would benefit from learning how to control his anger. The probation officer advised this program could also be delivered if L.D. was sentenced to custody.
[26] The probation officer believed L.D. would benefit from the services offered by Pinewood Centre, concerning his daily use of marihuana. L.D. admitted to daily use but did not see this as an issue or concern.
Circumstances of F.L.
[27] F.L. is currently 19 years of age, he was 17 at the time of the commission of the offence. He does not have a youth court record. He was born in Hawkesbury, near the Quebec border. His mother, S.S., advised she did not know she was pregnant for six months and drank alcohol occasionally and smoked cigarettes. F.L.'s father lived with F.L. and his mother until he was a year old. F.L.'s contact with his father has been minimal and currently neither he or his mother know where his father is living.
[28] Ms. S.S. receives ODSP and has for the past six years. She suffers from severe endometriosis, which has affected all areas of her life and her son's. It has prevented her from being an active parent, as she is often bed-ridden. When F.L. was 10 he and his mother moved to Oshawa. She initially lived in a shelter and was charged with assaulting a staff person because when this staff person confronted her about how she was putting a scarf on F.L. she reacted in a hostile manner. F.L. was placed in foster care for eight months by Durham CAS.
[29] F.L. was unsure how many high school credits he has still to complete. The probation officer determined he has only earned 9.5 credits. He has an Individual Education Plan for a literacy and numerical learning disability. He was taken off the school roll in 2018/19 because of poor attendance. Attempts were made to reconnect with him but to no avail. He currently spends his time playing video games and biking with friends. F.L. claimed the reason he stopped attending school was because he could not afford bus tickets, yet he admitted to smoking marihuana a few times a week since he was 14 years old. He denied using any other drugs and admitted to only drinking alcohol occasionally. He was not employed when the PSR was being completed.
[30] Ms. S.S. believes F.L. made a poor decision with regards to the offence. Ms. S.S. did not believe a custodial sentence would not assist her son but did believe he would benefit from counselling and a community disposition. Interestingly, Ms. S.S. contacted the probation officer two days after the PSR interview to complain about F.L. She was very upset and indicated she had left the home because she was very upset with F.L. She advised the two of them were arguing constantly and did not get along. He took her cell phone leaving her without one. She wanted to send F.L. back to Hawkesbury but did not have the money to do so. She was concerned that either she or F.L. would get physical with the other prior to the sentencing scheduled for July. Finally, F.L. was constantly putting her down for the "horrible life" he has had, which was completely inconsistent with what he had told the probation officer.
[31] F.L. also called the probation officer to indicate he wanted to move back to Hawkesbury to live with his uncle once he was sentenced. The probation officer spoke with his uncle, J.P. who confirmed F.L. could live with him and he could get him a job at the roofing company he works for.
[32] F.L. did not see any benefit he would receive from counselling but if he was ordered to attend he would. The probation officer outlined a number of programs available in Oshawa that she believed would benefit F.L. – including the Durham Family Court Clinic, The Community Support Team (CST) The Murray McKinnon Foundation, Re-Integration Support Outreach Worker Program, which provides for a youth to be paired with a Re-Integration Support Outreach (RSO) Worker. The RSO Worker would provide linkage with community resources and the Durham Alternative Secondary School (Oshawa). If he moved to Hawkesbury the Hawkesbury Youth Justice Services would be able to assist F.L.
Circumstances of C.P.
[33] C.P. is currently 17 years of age, he was 15 years of age at the time of the commission of the offence. He has a 12 month conditional discharge for possession of a Schedule II substance pursuant to s. 4(5). C.P. has never had a relationship with his biological father. He currently lives with his mother, A.P. and her partner P.P.
[34] C.P. has two half-siblings, both younger. A sister, D., and a brother, P., who died from health complications when he was 13. His mother described extensive physical and emotional abuse from D. and P.'s biological father. C.P. and P. were both apprehended by Durham CAS when P. was 7 months old and C.P. was 2 years old for a period of 5 months. A.P. believed her son, C.P. received a diagnosis of PTSD during this time because of the violence he witnessed between his mother and her then partner.
[35] A.P. self identifies as someone who experienced addictive behaviours and substance use for a brief period of time, which was before she had children. A.P.'s current partner has been involved in chronic substance dependency but has abstained for the past year and is currently attending Pinewood, AA, CAMH and drug diversion programs. P.P. is currently on probation for domestic violence towards A.P. and there is a revocable consent for him to have contact with A.P. and reside in the home. He also attends the PAR program. Both of C.P.'s parents are receiving ODSP.
[36] C.P. advised the probation officer he has been identified with a number of mental health-related diagnoses but was unable to detail what they were. A.P. advised C.P. had previously been diagnosed with PTSD at a young age as well as conduct disorder, oppositional defiant disorder and attention deficit hyperactivity disorder. Earlier this year C.P. experienced a collapsed lung and was rushed to hospital for surgery. This was most likely due to his use of poppers (tobacco mixed with marihuana). As a result, C.P. advised he has sworn off poppers and has stopped smoking marihuana completely.
[37] C.P. currently has 5.5 credits towards his high school diploma. He has worked since he was 15 at a local framing company. He provided the probation officer with two letters from his current employers who provided positive reviews of his performance. He is described as a good labourer, who follows direction well and completes tasks requested, a great asset to the team and a very hard dedicated worker. His current plan is to attend post-secondary school for a trades program. He works full-time.
[38] C.P. was on the conditional discharge and reported until he completed his community service, which was for one month.
[39] The probation officer recommended C.P. become involved in the Intensive Support and Supervision Program. This is an alternative to a custody sentence for youth who have been convicted of an offence and have a mental health diagnosis. Other programs recommended included the Murray McKinnon Foundation, Attendance Centre in Oshawa – the SNAP program, the Re-Integration Support Outreach Program. Also, the McKinnon Attendance Centre Independent Studies educational program would assist with C.P. completing his high school. The probation officer recommended a s. 34 report for C.P. to assist in addressing the complexity of C.P.'s challenges as well as concerns for his mental health.
[40] A s. 34 report was ordered on July 31, 2019, and sentencing for C.P. was adjourned until October 24, 2019. The s. 34 Report provided more detail concerning C.P.'s exposure to the domestic violence perpetrated by his mother's partners when he was young, including his current step-father, Mr. P. He has been exposed to his mother and sister's mental health issues, which are generally untreated.
[41] Unfortunately, C.P. has been exposed to considerable trauma, including domestic violence, the death of his younger brother, P.P., which occurred six months before this incident, in 2018, just before his arrest he witnessed two people get shot in front of his apartment building during a fight, and he was the victim of a home invasion on December 24, 2018, by some gang members because of his having to attend court to testify. He has not dealt with any of these traumas by way of counselling or therapy and is of the belief counselling would not be of any benefit to him. He refuses to take medication or attend for counselling. In addition, he has made allegations against N.G., the wife of M.G. that for a period of time she was having sexual relations with him, when he was dating her daughter and living in their home. The physical altercation occurred on the front lawn of this home. N.G. denies the allegations made by C.P. and I am not in any position to determine whether the allegations are true or false.
[42] He certainly has the support of his mother and step-father but it is clear his mother is dealing with untreated mental health issues, which include bi-polar disorder. Mr. P. was a heavy drug user and has only been drug free for the past year or two and he admitted his recovery is a full-time commitment for him and he recognized he has not been able to be as supportive as he should have towards C.P. His parents described C.P. having outbursts where he blows up and hits things and punches doors. C.P. has night terrors and wakes up crying over missing his brother. His parents source of income is ODSP and while they recognize C.P. needs to move to a different environment this is not something they can afford.
[43] C.P.'s intellectual profile testing by Dr. Marshall revealed his General Ability Index was significantly below the range expected for C.P.'s age, falling in the fifth percentile (IQ -75). He reads at a Grade 7 range. His spelling is at a grade four score and his math skills are at a grade 7 level.
[44] The psychological tests for risk assessment results for C.P. reach the upper end of the 'moderate risk' to re-offend. Dr. Marshall noted, "The risk that C.P.'s mental health difficulties will lead to further behaviour problems and conflicts is significant. It is also concerning that he shows no remorse for his violent behaviour.
[45] The diagnostic criteria for post-traumatic stress disorder, ADHD and mood disorder are met. Attachment disorder is also likely met. Criteria for learning disorder are also met.
[46] Dr. Patel found C.P. met the criteria for a complex grief reaction, or what is now termed persistent complex bereavement disorder. His anxiety symptoms are best encapsulated by a diagnosis of post-traumatic stress disorder with underlying anxiety disorder, unspecific, rule out generalized anxiety disorder. He experiences panic attacks. C.P. has a long history of oppositional and conduct disordered behaviour. He has been diagnosed with attention deficit hyperactivity disorder and is not on treatment at this time, which likely influences his impulsivity and will likely contribute to his antisocial conduct.
[47] Dr. Patel recommended that C.P. have further psychiatric follow-up and treatment. He indicated C.P. would benefit from non-stimulant medications for his ADHD. Psychotherapy should focus on grief and loss. To address his underlying mood symptoms, he would benefit from cognitive behavioural therapy strategies. Finally, he expressed concern about changing C.P.'s living arrangements because of safety concerns.
[48] Heather Ratych recommended similar programs to those discussed in the PSR: Community Support Team (CST) and Durham Family Court Clinic. This could be done through probation. The Re-Integration Support Outreach (RSO) Worker Program through Murry McKinnon Foundation. She also recommended referral to a psychiatrist for medication review and to create a plan for psychiatric treatment.
[49] Dr. Marshall opined he and Ms. Ratych believed that many of C.P.'s risk factors were amenable to change through the right program, which could provide intensive support and intervention. Although C.P. did not express interest in counselling he was prepared to talk freely about issues and obstacles he is facing, which suggests he may respond positively to ongoing involvement with a counsellor. The psychoeducational assessment indicated C.P.'s academic potential is relatively low. He suggested C.P. would be most successful in courses or employment that include a strong visual component emphasizing observation and "hands-on" learning.
Aggravating and Mitigating Circumstances
[50] There are many aggravating features in this case.
Aggravating Factors:
L.D. had arranged to fight X.G. as a result of a series of texts between L.D. and X.G., where L.D. made derogatory comments concerning X.G.'s mother, N.G.
L.D. brought four other youths to this fight with X.G. I found a number of the five young persons were armed with weapons: a knife, rocks, an empty liquor bottle and a glass candle holder. Further, a number of these youth were wearing ski masks or scarves to hide their faces. There is an element of premeditation and deliberateness. They attended the address spoiling for a fight.
I found M.G. came outside his residence in an attempt to calm the situation and prevent a physical altercation from occurring. He was pushed from behind into L.D. and was then pushed or knocked to the ground where he was punched, kicked and stomped on by the other four youths who had accompanied L.D. The actions of these youth are best described as a "swarming."
The defence alleged M.G. threw the first punch because of a derogatory comment by L.D., "At least my wife doesn't fuck 15 year old boys," however, the brutality of the assaultive behaviour, which involved all five youths punching, kicking and stomping M.G. who was now lying prone on the ground clearly demonstrated the excessive nature of the assaults. I did not accept this version of the events as being accurate and it was clear from the video the five youths completely lost control of their emotions during their assault of M.G.
M.G. was able to get to his feet during the first swarming and he attempted to escape by running away, however he was chased and thrown again to the ground by a tree on his front lawn where once again all five youths, including L.D., F.L. and C.P., began punching, kicking and stomping him. M.G. was in a fetal position, attempting to use his hands and arms to protect and shield his head from the repeated blows by the five youths who surrounded him.
The injuries suffered by M.G. as a result of the assaultive conduct was serious and significant, necessitating 19 staples in his head and 7 sutures on his forehead to close the cuts, which resulted in permanent scars that are still painful when touched. Some of the cuts were linear, which was consistent with being cut by a large knife found in the snow where M.G. had been on the ground. M.G. also suffered extensive bruising from his ankle to his upper back on his left side from being kicked, which has resulted in chronic pain. He continues to suffer from blurry vision, headaches, a sore neck and numbness in his hands and feet as a result of the assault.
The motivation for the texts sent by L.D. to X.G. and for the eventual physical altercation were directly related to C.P.'s allegations to L.D. and F.L. of X.G.'s mother, N.G., having sexual intercourse with him when he was living with the G. family and he was dating X.G.'s sister, Z.G. The video depicted the brutality and viciousness of the physical altercation of five youth repeatedly assaulting M.G. as he lay defenceless on the ground. The anger and ferocity of the swarming (one of the youth can be heard yelling, "Stomp his head" when M.G. was being assaulted) was clearly fueled by C.P.'s allegations against N.G. In my view the taking of justice into their own hands is an aggravating circumstance.
L.D. told the probation officer preparing his pre-sentence report he "did not feel badly about the fight, however he said it was unfortunate that one of the victims sustained serious injuries." C.P. told the Ms. Ratych, the Assessment Clinician for the s. 34 Report that the altercation started with text messages between X.G. and one of his friends (L.D.) and they agreed to fight. He said M.G. punched L.D. because L.D. said to him, "at least my wife doesn't fuck 15-year-olds." He recalled stepping in and throwing M.G. into a bush and then he "blacked out and doesn't remember anything else that happened." He maintained he did not do any damage to M.G., somebody else did so he was not guilty. C.P. described the situation as being complicated and he did not feel bad for the victim's family but does feel bad as serious damage was done to the victim's head that he knows could have killed him. He told Dr. Patel he grabbed M.G. off L.D. and threw him into a bush. He threw his hands at M.G. and admitted touching M.G. but M.G. was hitting teenagers. C.P. blamed X.G. for starting the situation and he knew he should get some kind of consequence but he did not deserve jail.
The psychological and emotional impact caused by the brutal and vicious assault by L.D., F.L. and C.P. of M.G. in front of his family continues to cause significant difficulties for them and has seriously affected their quality of life, where they all suffer from PTSD, anxiety and other emotional complications. In my view this is also an aggravating circumstance.
[51] The fact these three young persons had a trial cannot be treated as an aggravating circumstance. It was their right to have a trial and they are equally entitled to maintain they are not guilty of the offence I found them guilty of. However, the mitigation occasioned by a guilty plea, which demonstrates remorse and acceptance of responsibility is not available to L.D., F.L. or C.P. It is my view L.D. and C.P. have little insight into the seriousness of the assaultive conduct they engaged in based on their comments to the probation officer and in C.P.'s case the comments he made to the assessment clinician and the psychiatrist. L.D. was not asked by the probation officer about his involvement in the offences he was found guilty of.
[52] The mitigating circumstances are:
Mitigating Factors:
Two of the three young persons, L.D. and F.L. do not have youth court record and C.P. only has a 12 month conditional discharge for a s. 4(5) simple possession of a Schedule II substance.
Consequently, they are youthful first offenders and the sentencing principles set out in R. v. Priest, which provides similar guidelines for sentencing judges who are determining a proportionate sentence for youthful adult offenders.
Sentencing Principles Applicable under the YCJA
[53] Parliament in enacting the Youth Criminal Justice Act (YCJA) aimed to correct an over-reliance by the justice system on custodial sentences, a practice which evidence showed did not benefit society or the young offender.
[54] The purpose of sentencing under the YCJA is set out at section 38 (1). The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for his or her conduct by imposing just sanctions that have meaningful consequences to the young person and promote his or her rehabilitation and reintegration into society. The focus of sentencing is to protect society through an attempt to rehabilitate and reintegrate the youth back into the community. As a result of the recent amendments, courts can consider the need for specific deterrence and denunciation in sentencing.
[55] The sentence must be the least-restrictive sentence capable of achieving the purpose of sentencing. The sentence must be proportionate to the seriousness of the offence and the offender's degree of responsibility.
[56] Section 38 of the Act goes on to set out principles and factors that must be considered in fashioning an appropriate sentence:
(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:
(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;
(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;
(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;
(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;
(e) subject to paragraph (c), the sentence must
(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),
(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and
(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and
(f) subject to paragraph (c), the sentence may have the following objectives:
(i) to denounce unlawful conduct, and
(ii) to deter the young person from committing offences.
Factors to be considered
(3) In determining a youth sentence, the youth justice court shall take into account
(a) the degree of participation by the young person in the commission of the offence;
(b) the harm done to victims and whether it was intentional or reasonably foreseeable;
(c) any reparation made by the young person to the victim or the community;
(d) the time spent in detention by the young person as a result of the offence;
(e) the previous findings of guilt of the young person; and
(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.
[57] Section 39(1) allows a court to consider a custodial sentence in only four circumstances. A custodial sentence is open for consideration because L.D., F.L. and C.P. have committed a violent offence. The definition of "violent offence" was decided by the Supreme Court of Canada in R. v. C.D.; R. v. C.D.K., 2005 SCC 78, where the majority held violent offences are those offences were a young person causes, attempts to cause or threatens to cause bodily harm. Despite that, s. 39(2) directs I must consider first whether there are reasonable non-custodial alternatives available. I must impose the least restrictive sentence that is proportionate, considering the seriousness of the offence and L.D.'s, F.L.'s and C.P.'s degree of responsibility. I must impose a sentence that also promotes L.D.'s, F.L.'s and C.P.'s rehabilitation and re-integration into society.
[58] Section 39(3) of the Act sets out factors to be considered in determining whether there are reasonable alternatives to custody:
(a) the alternatives to custody that are available;
(b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and
(c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.
[59] In determining whether a non-custodial sentence will meet the objectives of the YCJA, a court must consider whether the sentence is sufficient to hold a young person accountable for the offence. The Court of Appeal has provided guidance as to what it means to hold a young person who offends accountable. In R. v. A.O., 2007 ONCA 144, at paras. 46-47, Justice Rosenberg held that accountability in the YCJA is the equivalent of the adult sentencing principle of retribution, reflecting "the moral culpability of the offender, having regard to intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct." Accountability is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society. The purpose of accountability in this context would seem to exclude accountability to society in any larger sense or any notion of deterrence (see R. v. A.O., at para. 42).
[60] As a result of the 2012 amendments to the YCJA, youth courts can now consider the need for specific deterrence and denunciation in sentencing. General deterrence continues to have no place in determining an appropriate sentence in youth sentences.
[61] Section 42(9) of the YCJA dealing with a "Serious Violent Offence" designation was repealed in 2012 as part of the amendments to the YCJA. Section 42(5) provides for a deferred custody and supervision order pursuant to s. 42(2)(p), which is similar to a conditional sentence under s. 742.1 of the Criminal Code of Canada. The maximum length is six months. The sentence is only available if "the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts to cause serious bodily harm." L.D., F.L. and C.P. all engaged in assaultive behaviour that caused serious bodily harm, both physical and psychological/emotional harm, to M.G. In addition, there can be no doubt from the Victim Impact Statements of the G. family members that all of them suffered psychological and/or emotional trauma, which continues to the present because of three of the family members' existing diagnosis of autism. The only family member who does not suffer from autism spectrum (high functioning) is N.G. but her testimony and her VIS both indicated she is now on long term disability as a result of post-traumatic stress disorder, anxiety and depression and she is receiving counselling and is on medication as a result of watching the swarming and assaultive behaviour by the five youths, which left her husband, M.G. seriously injured.
[62] As a result a deferred custody and supervision order is not available and the defence have not brought a constitutional or Charter challenge to this provision.
Sentence Imposed
[63] Sentencing is a highly individualized process that is dependent on the unique facts surrounding the offence and offender.
[64] The primary issue to be determined is whether a custodial sentence is required in this case the meet the principles and purposes of the YCJA. Mr. Stephens emphasized the gravity of the offence and moral blameworthiness of each of the young persons in terms of their conduct in submitting the only appropriate sentence was a custodial sentence.
[65] The seriousness of the offence and the degree of responsibility of the young person are also essential to determining the ability of a sentence to hold a young person accountable. Accordingly, an assessment of the seriousness of the offence and L.D.'s, F.L.'s and C.P.'s moral culpability are essential to establishing the upper limit of a proportionate sentence and to calculating the sentence that is necessary to hold L.D., F.L. and C.P. accountable. Having regard to the intentional risk-taking by L.D., F.L. and C.P., the role that they played in the offences, the consequential harm caused and the normative character of their conduct, it is my view that a proportionate sentence in this case could certainly include a term of custody and community supervision. On the facts as I have found them the need to hold each of L.D., F.L. and C.P. accountable is great.
[66] Courts of Appeal have held in cases with circumstances similar to this case that a non-custodial sentence is not a fit sentence, and have imposed custodial sentences of varying lengths, from 6 to 24 months of custody and supervision.
Relevant Case Law:
In R. v. D.S., 2008 ONCA 740, a 16 year old offender was one of a group that kicked and punched a victim whom had been involved in a prior dispute with the group. D.S. was found guilty of aggravated assault. D.S. was not the main perpetrator and in fact did not himself deliver any blows. The victim suffered brain damage. D.S. was aboriginal and had a prior criminal record and "a tragic upbringing". The Ontario Court of Appeal upheld the trial judge's finding that a custodial sentence of 24 months was appropriate, after reducing the sentence to give appropriate credit for pre-sentence custody of 7 months.
In R. v. K.O., [2009] M.J. No. 56 (C.A.), a 16 year old offender with no prior record participated in a home invasion in order to avenge a friend who claimed she was abused by her step-father. The victim grabbed K.O., and K.O. stabbed him. The victim suffered two collapsed lungs. K.O was found guilty of aggravated assault and entering a dwelling house. K.O. was extremely remorseful, had strong positive family support, and was assessed by a psychologist as low-risk to re-offend. The Manitoba Court of Appeal found that the sentence of 2 years' probation imposed by the trial judge was unfit, and that a 6 month sentence of custody and supervision was appropriate. However, because of the lengthy period between the sentencing and the appeal during which K.O. had made "great strides", the Court declined to vary the sentence.
In R. v. K.L., [2009] O.J. No. 3252 (C.A.), a 15 year old offender with no prior record was found guilty of assault causing bodily harm. K.L. was part of a group which went to a plaza to confront young men from another group. K.L. played a significant role in the assault on the victim, who suffered a broken jaw and concussion and lost two months' work. K.L. had strong family support. The Ontario Court of Appeal set aside a probationary sentence as unfit, substituting a 6 month sentence of custody and supervision.
In R. v. C.N., a 17 year old offender with no prior record and good family support was found guilty of aggravated assault when he slashed another boy with a knife, causing serious injuries. The young person was sincerely remorseful, and had engaged in appropriate counseling since the offence. It did not appear that a custodial disposition was required to rehabilitate the young person. The trial judge imposed a sentence of two years' probation, with strict conditions. The Ontario Court of Appeal set the sentence aside as demonstrably unfit, given the seriousness of the offence and the offender's degree of responsibility, and imposed a sentence of 9 months custody and supervision followed by 6 months' probation.
[67] The above cases reflect that generally speaking, even where a party to an offence is involved, appeal courts have determined that non-custodial orders are generally unfit in crimes of violence and serious bodily harm. There are a number of decisions from the Ontario Court of Justice which I found during my research and to which I referred to assist in my application of the sentencing principles set out in ss. 3, 38, 39, and 42 of the YCJA: R. v. N.A., [2017] O.J. No. 2897 (OCJ, Bondy J.); R. v. C.N., [2016] O.J. No. 5076 (OCJ, Murray J.); R. v. W.R., [2015] O.J. No. 4257 (OCJ, Murray J.); R. v. M.A.Z., [2013] O.J. No. 2916 (OCJ, Borenstein J.); R. v. S.B., [2009] O.J. No. 473 (OCJ, Gage J.); and R. v. M.E., 2008 ONCJ 99.
[68] I was only provided one case by the Crown, R. v. J.D., [2008] B.C.J. No. 395 (B.C. Prov. Ct., Hicks J.), where the young person's offence of assault bodily harm was designated as a serious violent offence pursuant to s. 42(9) (subsequently repealed in 2012). After a lengthy trial the young person was found guilty. The facts of this case were similar to the facts of the case before me. Mr. F. and other members of his family were confronted by a group of youths at the school his children attended. He daughter was attacked and Mr. F. defended her. Mr. F. and his son fled and went to their home followed by a large group of youths. Two of Mr. F.'s son's friends joined them. There was yelling and shouting between the two groups. Two individuals struck Mr. F., which triggered a violent attack by a number of young people on Mr. F. There were three phases of the attacks by these young people. This first attack was the first phase. Mr. F. escaped to a property across the street by he was chased and caught and attacked again. He fell to the ground. He ran back to his property but was attacked a third time and fell to the ground again. Mr. F. was severely beaten. He was struck with a car antenna and with bottles by some of the young people attacking him. J.D. did not have a weapon but he was kicking and stomping on Mr. F. Mr. F. suffered serious and significant injuries including a broken nose, two dislocated shoulders, stretched tendons and swelling and bruising of most of his body. He was off work for five months and at the time of sentencing J.D. Mr. F. had not fully recovered. The attacks took a significant emotional toll on himself and his family. The judge held a custodial sentence was warranted to hold J.D. accountable with meaningful consequences. He had already been in custody 65 days and the judge held the range of sentence was 9-10 months. He imposed an additional 6 months with a further 18 months of probation with conditions. No appellate court or provincial court decisions were cited by Justice Hicks supporting the additional 6 months custodial sentence.
[69] I was only provided one case by Mr. Davoudi for the defence, R. v. T.R., supra, (OCJ, Hawke J.), which in my view is of little assistance in determining a proportionate sentence that will hold the young persons in this case accountable by imposing meaningful consequences for the offenders that promote their rehabilitation and reintegration into society. The above appeal cases, three from the Ontario Court of Appeal, demonstrate a non-custodial disposition for the type of violent offence that occurred here would be inappropriate and unfit, having regard to the seriousness and gravity of the assault causing bodily harm and the high degree of responsibility and moral culpability of the three young persons, L.D., F.L. and C.P. The serious harm suffered by M.G. as a result of L.D.'s, F.L.'s and C.P.'s assaultive behaviour has caused him continuing difficulties with pain, blurred vision and headaches. The scars left by the staples and sutures are permanent and continue to cause him pain if touched. M.G. and his family members described in their Victim Impact Statements the psychological and emotional trauma caused, in M.G.'s case, by the repeated assaultive behaviour of the five youths on two occasions when he was prone and defenceless on the ground and, in the other family members' case, having to watch the five youths repeatedly assault their husband/father and feeling helpless, afraid and no longer safe in their community. All of the G. family members described suffering from panic attacks brought on by memories of the night of February 1, 2018.
[70] It is my view the aggravating circumstances and factors in this case are so significant that I must impose a custodial sentence in order for L.D., F.L. and C.P. to be held accountable for their actions on the evening of February 1, 2018. In reaching this conclusion I have assessed the gravity of the offence and each of the three young person's moral culpability as required by R. v. A.O, supra. The gravity and seriousness of the offence – the swarming of a father attempting to prevent a fight occurring between his son and L.D., a youth who had previously been a close friend and then swarming him by punching, kicking and stomping when he was twice defenceless lying on the ground – is extremely high. Certainly this is the type of offence that raises great concerns in the community.
[71] L.D., because of the text exchange and the agreement formed between L.D. and X.G. to fight, was the moving force behind the decision to come to the G.'s home, dressed in dark clothes, with ski masks and scarves. L.D. did not come alone, he brought four friends, who were similarly dressed and armed with weapons, which included a knife, rocks, an empty liquor bottle and a glass candle holder. It is my view this was a planned and premeditated occurrence given their dress and the weapons that were brought. L.D.'s brother, J.D., was at their house, which was beside the G.'s house. L.D. and J.D.'s mother was not home. The five youth came up to the G. house and began to call X.G. to come out and fight. M.G. exited his house first to try to calm the situation down. All of the five youths who descended on the G. house were equally involved in the swarming of M.G. and assaultive behaviour, which involved punching, kicking and stomping M.G. In my view the degree of responsibility of each of the three young persons was very high.
[72] The only persons whose injuries were bleeding from cuts and contusions were M.G. and X.G. None of L.D., F.L. or C.P. had any injuries as a result of their involvement in the physical altercation. The injuries sustained by M.G. were very serious as evidenced by the fact that 19 staples and 7 sutures were required to close the wounds to M.G.'s face and head. I found M.G. did not initiate any physical assault on any of the youths who were present. He was swarmed and attacked and beaten and seriously injured.
[73] A custodial sentence is available pursuant to s. 39(1)(a) and is appropriate. This was an extremely violent offence which could have resulted in even far more serious consequences for M.G., as recognized by C.P. who told Ms. Ratych he "feels bad about the serious damage done to [M.G.'s] head that he knows could have killed him." No two cases are alike or completely similar, however, having regard to the totality of the circumstances surrounding this case, and being guided by the Ontario Court of Appeal cases above, it is my view a custodial sentence of four months to be followed by two months of community supervision is the appropriate and proportionate sentence. This will be followed by 15 months of probation.
[74] It is my view this sentence is not greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances. An adult who committed an assault bodily harm in the circumstances of this case and which caused similar injuries to the victim would be facing a mid to upper reformatory sentence.
[75] All counsel requested the custodial sentence be served in an open custody facility. I will hear from counsel the terms of probation they suggest would best be suited for each young person.
Restitution
[76] I have reviewed the submissions by counsel respecting the restitution application made by N.G. She is claiming restitution in the amount of $18,660.00, which represents the real estate commission paid on the sale of her residence on November 1, 2018. She is also seeking restitution respecting the difference between her salary with York Region School Board and her long term disability payments, which amount to $917.28 per month for 1 year, for a total of $11,007.36. In addition she is claiming monthly traumatologist fees not covered by her benefit package of $101.70 per month for 1 year for a total of $1220.40. The total restitution sought is $30,887.76.
[77] X.G. is claiming restitution in the amount of $412.44, which is comprised of a replacement shirt, total cost $79.09 and replacement shoes, cost $333.35.
[78] The YCJA provides a youth court can order the "young person to pay to any other person at all times and on the terms that the court may fix an amount by way of compensation for loss or damage to property or for loss of income or support,…special damages for personal injury, arising from the commission of the offence if the value is readily ascertainable, but no order shall be made…for general damages" (s. 42(2)(e)).
[79] Under s. 54(1) of the YCJA a sentencing judge is instructed, "The youth court justice shall, in imposing a fine under paragraph 42(2)(d) or in making an order under paragraph 42(2)(e) to (h), have regard to the present and future means of the young person to pay."
[80] Dealing first with X.G. application for restitution. It is my view the two items claimed to be damaged as a result of the assaultive behaviour of L.D., F.L. and C.P. are readily ascertainable. X.G. came outside after his father was first assaulted. He attempted to go to his father's assistance when M.G. was knocked or pushed to the ground the second time after he had momentarily escaped the first swarming. I heard evidence of there being a great deal of blood caused by the injuries sustained by M.G. X.G. at one point was in close proximity to his father when he was assaulted by L.D. and C.P., which I found resulted in X.G.'s black eye and the tearing of his shirt. He testified and put in his VIS that his shoes ended up with blood on them. In my view these damages were caused by the actions of all three young persons during their swarming and beating of M.G. as well as L.D. and C.P.'s assault of X.G., which was testified to by J.D.
[81] Consequently, I am awarding restitution to X.G. for his Shirt, $80.00 and in his VIS he indicated the running shoes were $140. The total amount of restitution is $220.00 to be divided equally between L.D., F.L. and C.P. ($75.00 each).
[82] X.G. replaced his running shoes with another pair of running shoes that cost $333.35. I am not prepared to order restitution in an amount greater than the original cost of his shoes, which is reflected in his VIS.
[83] Dealing with N.G.'s restitution application. First, the real estate commission related to the sale of the G. residence on November 1, 2018. In N.G.'s VIS she makes reference to the fact her family could not remain in their house "where [she] was constantly called a Pedophile from one of the assailant's mothers whom lived directly next door." The sexual interference and sexual assault charges were not before me and as a result, I cannot determine whether those allegations are true or false. I have no doubt that the G. family found it extremely difficult to live next door to one of the young persons who brutally beat their father. I acknowledge the costs to the G. family for the injuries, both physical and psychological are great. However, as it relates to the decision to sell their home and move there is another equally viable reason for the move which relates to charges against N.G. that are not before me. Consequently, I find this amount of restitution is not readily ascertainable in terms of being related to the swarming and assault of M.G.
[84] The same issue arises in respect of the loss of income claim. N.G. is only claiming for 1 year but I know from the Crown's submissions N.G. exhausted her sick days initially before she went on long term disability. The facts before me seem to disclose that N.G. was not charged with sexual interference and sexual assault offences until after the swarming occurred on February 1, 2018 after the three young persons (L.D., F.L. and C.P.) were charged. However, the allegation was out prior to the altercation on February 1, 2018 because it was those allegations that initiated the text messages between L.D. and X.G. and the agreement between them to fight and it was the underlying motivation behind the animosity and anger that resulted in the five youths attacking and beating M.G. on two occasions, which caused him serious injuries. The documentation provided also does not permit for me to readily ascertain the exact amount of difference between N.G.'s salary and her long term disability payments or even what the long term disability is predicated on. In order to make determinations on this issue there would have to be extensive documentation filed and evidence called, which in my view defeats the requirement that the amounts are readily ascertainable. It might be different for M.G. had he brought an application for lost wages because of inability to work for a period of time as the loss of his weekly income would be readily ascertainable and would be directly related to the injuries caused by the young persons assaultive conduct. That is not the case respecting N.G.'s claim for a reduction in her income.
[85] Finally, I was only provided an example of one trauma therapy session with Ronn Young for N.G., yet she indicated everyone in her family was seeing Mr. Young once a month. Again, there is a lack of documentation respecting this trauma therapy, which if it were related to the events of February 1, 2018 would be the type of compensation or restitution that would be appropriate to order.
[86] A further complicating factor is the present and future ability of the three young persons to be able to pay any restitution amounts. None of L.D., F./L. or C.P. have completed high school. L.D. is the only one who is close to graduating. C.P. is working as a framer but his earnings are limited. C.P. also deals with a number of mental health issues for which he needs counselling and treatment. F.L. is not working and not attending school. I have concerns on ordering restitution for the trauma therapy sessions even if I had all of the information that would result in the amounts being readily ascertainable. I requested of the Crown to obtain some further documentation and information from N.G. concerning the trauma therapy. He advised he had requested this but had not received anything from her. In all the circumstances I decline to make a restitution order respecting this amount for the reasons indicated.
Released: October 24, 2019
Signed: Justice Peter C. West